“Employers are responsible for providing a safe workplace to all employees, even employees working at home…” (Eric Uhl, Fisher & Phillips)

Telecommuting may provide companies with a number of benefits, but it’s not without legal risk. Here are five issues to consider:

1. Wage and hour laws:

“While telecommuting may appear to be a terrific option for employers because of the decrease in overhead and (hopefully) the increase in employee morale, allowing telecommuting is not without risk under the Fair Labor Standards Act (FLSA). FLSA complaints from home-based workers include: working through breaks and meal periods, travel time to attend meetings, after-hours phone calls and e‑mails, and time spent waiting for projects and/or for the computer.” (Ogletree Deakins)

2. Workplace safety:

“Employers are responsible for providing a safe workplace to all employees, even employees working at home, under the Occupational Safety and Health Act. Workers’ compensation laws still apply to telecommuters, even when they are working at home. To address these issues, you can require telecommuters to have a designated workspace that has been inspected and approved by the company to address workplace safety obligations. You can even advise telecommuters that the designated workspace may be subject to random safety inspections and require that the telecommuter maintain safe work practices.” (Fisher & Phillips)

3. Privacy:

“Implementation of a telecommuting program also raises privacy concerns. With respect to the material the telecommuting employee is using remotely, the policy should require the employee to protect the privacy of any sensitive information of the employer and/or its clients (i.e., information security). Information security is particularly important if the information accessed by the employee is covered by state or federal laws protecting privacy (e.g., the Health Insurance Portability and Accountability Act)… With respect to the employee’s privacy rights, in the telecommuting agreement, the employee should expressly consent to the employer accessing all forms of communication used by the employee while performing the work (e.g., phone, email and Internet).” (Pepper Hamilton)

4. State tax liabilities:

“For out-of-state corporations that do business in New Jersey through the use of ‘virtual offices,’ the recent decision by the Appellate Division of the Superior Court of New Jersey in Telebright … is a reminder that employees who ‘telecommute’ from New Jersey will not relieve their employers of certain corporate tax obligations.” (Cole Schotz)

5. Discrimination claims:

“To minimize the risk of discrimination claims, employers should use consistent standards in determining which employees are allowed to telecommute. The more objective the decision-making, the better. Employers can create a telecommuting policy enumerating which job positions are eligible for a telecommuting arrangement and what criteria an employee must meet to be eligible for the program. After creating a policy, the employer should refrain as much as possible from making exceptions. As with all company policies, consistent adherence will limit an employee’s ability to bring a successful discrimination claim.” (Morrison & Foerster)